CROSSOVER: Article 38.37 notice complaints are waived without a continuance request—even after a specific pretrial objection

Curtis Johnson v. The State of Texas, 07-25-00343-CR, April 29, 2026.

On appeal from 140th District Court of Lubbock County, Texas

Synopsis

A complaint that the State’s article 38.37 notice was too vague is not preserved merely by objecting. If the real complaint is surprise and inability to prepare, counsel must request a continuance, postponement, or other curative relief; otherwise the issue is waived, even where the objection was specifically raised before trial and renewed at trial.

Relevance to Family Law

Texas family-law litigators should pay close attention to this criminal preservation rule because the same strategic dynamic appears constantly in SAPCRs, modification suits, protective-order proceedings, divorce cases involving abuse allegations, and property disputes colored by family violence or sexual misconduct claims. When the opposing side gives late, vague, or evolving notice of highly prejudicial bad-act evidence, a clean objection alone may be insufficient to protect the record if the real prejudice is lack of time to prepare; the litigator who claims surprise but proceeds without seeking a continuance risks both waiver and a later appellate finding of no harm.

Case Summary

Fact Summary

The defendant was tried for continuous sexual abuse of a young child. At trial, the State also offered evidence of alleged prior sexual abuse committed by the defendant against another victim, A.J., under article 38.37 of the Texas Code of Criminal Procedure. The State’s notice described the proposed extraneous acts in broad terms, identifying the offenses as aggravated sexual assault of a child and indecency with a child against A.J. over a lengthy date range.

Defense counsel complained that the notice lacked meaningful specificity. According to the defense, the notice did not identify how many incidents were being alleged, what precise acts were at issue, or where they supposedly occurred. The issue was raised at a pretrial hearing, where A.J. testified about the abuse allegations, and counsel objected again at trial when the evidence came in. But counsel never asked the trial court for a continuance, postponement, or any other relief designed to cure the claimed surprise.

That omission drove the appeal. The Amarillo court focused less on whether the notice was ideal and more on whether the defendant took the procedural steps necessary to preserve a notice-based complaint for appellate review.

Issues Decided

• Whether the defendant preserved a complaint that the State’s article 38.37 notice of extraneous sexual-offense evidence was insufficient.
• Whether an objection, without a request for continuance or postponement, is enough to preserve a surprise-based notice complaint.
• Whether any assumed notice error was harmful in light of the record.

Rules Applied

The court relied on several settled principles:

• A trial court’s evidentiary rulings are reviewed for abuse of discretion.
• Article 38.37 permits admission, in certain child-sex-offense prosecutions, of other sexual-offense evidence for relevant purposes, including character conformity, after the required hearing and findings.
• Article 38.37 requires the State to give notice of its intent to use such evidence at least 30 days before trial.
• The purpose of the notice requirement is to avoid surprise and permit the defense to prepare.
• When the complaint is inadequate notice of extraneous-offense evidence, preservation requires more than an objection; the defendant must request a continuance or postponement to alleviate the claimed surprise.
• Even if error is assumed, lack of notice is reviewed as non-constitutional error under Rule 44.2(b), and the appellant must show the lack of notice affected the ability to mount an adequate defense.

The court cited, among others, McDonald v. State, 179 S.W.3d 571 (Tex. Crim. App. 2005), Martines v. State, 371 S.W.3d 232 (Tex. App.—Houston [1st Dist.] 2011, no pet.), Martin v. State, 176 S.W.3d 887 (Tex. App.—Fort Worth 2005, no pet.), Koffel v. State, 710 S.W.2d 796 (Tex. App.—Fort Worth 1986, pet. ref’d), and Lara v. State, 513 S.W.3d 135 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

Application

The court treated the defendant’s argument for what it was: a complaint of surprise. The defense insisted the State’s notice was too vague to allow adequate preparation because it failed to identify the number of incidents, the specific conduct, and the locations. But once surprise is the theory, Texas preservation law requires counsel to ask the trial court for a practical remedy—typically a continuance or postponement—so the alleged prejudice can be cured.

That did not happen here. Counsel objected at the pretrial article 38.37 hearing. Counsel objected again at trial. Counsel even secured a running objection. But he never asked for more time. He never moved to continue. He never asked to postpone A.J.’s testimony. He never articulated what additional investigation or trial preparation was needed if the objection was sustained in part or if more specificity were ordered. In the appellate court’s view, that failure was dispositive.

The court also underscored that the defense had meaningful exposure to the substance of the testimony before trial. A.J. testified at the pretrial hearing several days earlier, and defense counsel cross-examined her there. The State’s notice, while broad, had identified the victim, the offense categories, and the date range more than a year before trial. Against that backdrop, the court concluded that even if error were assumed, the defendant had not shown that any lack of specificity actually impaired his defense.

Holding

The court held that the defendant failed to preserve any complaint about the sufficiency of the State’s article 38.37 notice because he did not request a continuance or postponement to cure the claimed surprise. An objection alone, even a specific objection raised pretrial and renewed at trial, was not enough.

The court further held that, even if preservation and error were assumed, the defendant did not demonstrate harm. The record showed he had advance notice of the general allegations, heard the witness testify at the pretrial hearing, cross-examined her, and failed to explain how his trial strategy would have been materially different with greater specificity.

Practical Application

For family-law litigators, the opinion is a preservation case masquerading as an evidence case. Its practical lesson is simple: if your complaint is that the other side’s notice is too vague or too late to permit adequate preparation, then your remedy must match your theory. In divorce and SAPCR practice, that means when opposing counsel designates broad categories of abuse evidence, prior assaults, CPS history, pornography allegations, hidden-asset misconduct, or coercive-control evidence without enough factual detail to prepare, you should not stop at “objection, lack of notice.” You should request a continuance, postponement of the witness, leave to re-open discovery, or another specific curative measure.

This matters most in emergency or compressed family-law settings. Temporary-orders hearings, protective-order contests, enforcement proceedings, and final trials often feature trial by ambush in everything but name. If you proceed after complaining of surprise, appellate courts may later say the same thing said here: the prejudice could have been cured had you asked, and because you did not, the complaint was waived.

The opinion also has offensive value. If your opponent objects that your notice of prior bad acts, family violence, sexual abuse allegations, or financial misconduct is too general, but then elects to go forward without seeking a continuance, you have a strong preservation response. This is especially useful when the other side attempts to build appellate error out of a record showing only objection, not requested relief.

Finally, the court’s harm discussion is highly transferable to family cases. Appellate courts want specifics. A party claiming inadequate notice should be prepared to identify what additional witnesses would have been called, what records would have been subpoenaed, what impeachment would have been developed, what expert would have been retained, or how the case theory would have changed. Without that showing, both preservation and harm arguments weaken substantially.

Checklists

When Opposing Counsel Gives Vague Notice of Prejudicial Conduct Evidence

• Object specifically to the lack of reasonable notice.
• Identify exactly what is missing: dates, acts, locations, witnesses, documents, or episode count.
• State on the record why the lack of detail creates genuine surprise.
• Request a continuance or postponement immediately.
• Alternatively request narrower curative relief if full continuance is unrealistic.
• Ask the court to require supplementation of the notice.
• Make a record of the additional preparation you need.
• Renew the objection when the evidence is offered.
• Obtain a clear ruling.

Building a Preservation Record in Family Court

• Tie the complaint to due process, fair notice, and ability to prepare.
• Explain what discovery was impossible or incomplete because of the defective notice.
• Identify the witness interviews, subpoenas, expert work, or document review you need time to complete.
• If trial is imminent, ask to take the witness out of order or outside the presence of the factfinder.
• Offer a proposed time frame for the continuance.
• If relief is denied, make an offer of proof regarding the defensive evidence you were unable to develop.
• After trial, preserve the issue again in any motion for new trial if appropriate.

Using This Case Defensively Against a Surprise Complaint

• Emphasize that objection alone does not preserve a surprise-based notice complaint.
• Show that the opponent never requested a continuance, postponement, or other curative relief.
• Demonstrate that the opponent had advance awareness of the subject matter through pleadings, discovery, mediation summaries, or prior hearings.
• Point out any pretrial testimony, affidavits, or exchanged exhibits that disclosed the substance of the evidence.
• Argue lack of harm by showing the opponent cross-examined effectively and identified no different trial strategy.
• Frame the dispute as one of tactical choice rather than true surprise.

Drafting Better Notice to Avoid the Fight

• Identify the witness by name.
• State the general nature of each incident or category of conduct.
• Provide approximate dates or date ranges with as much precision as possible.
• Include locations where known.
• Distinguish among separate episodes if multiple incidents are expected.
• Reference related documents already produced in discovery.
• Supplement promptly if your proof develops.
• Raise the issue proactively with the trial court before trial if you anticipate a notice objection.

Family-Law Scenarios Where This Preservation Rule Commonly Matters

• Temporary-orders hearings involving family violence allegations.
• Final custody trials involving sexual-abuse or grooming allegations.
• Modification suits based on endangerment or abusive conduct.
• Protective-order proceedings with prior uncharged incidents.
• Divorce trials involving waste, fraud, coercive control, stalking, or hidden relationships.
• Enforcement proceedings where new misconduct is offered to influence credibility or conservatorship decisions.

Citation

Curtis Johnson v. The State of Texas, No. 07-25-00343-CR, 2026 Tex. App. LEXIS ___ (Tex. App.—Amarillo Apr. 29, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

Family Law Crossover

This case can be weaponized in Texas divorce and custody litigation in two directions. First, as the proponent of damaging conduct evidence, you can use it to argue that the opponent waived any complaint about inadequate notice by choosing to proceed without asking for time to respond. Second, as the opponent to that evidence, you should treat vague notice as a procedural emergency, not merely an evidentiary objection. In practical terms, if the other side unveils broad allegations of sexual misconduct, family violence, coercive control, child endangerment, dissipation, or fraud, and you genuinely need time to investigate, you must ask for that time. Otherwise, you risk trying the case under protest and then discovering on appeal that protest alone preserved nothing.

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